Goodwin Liu

Goodwin Liu Gets a Place on the California Supreme Court

Goodwin Liu, the much-admired law professor whose nomination to the 9th Circuit Court of Appeals was run into the ground by the Senate GOP this year, is now a judge. Liu was confirmed last night to sit on the California Supreme Court, where one of his first cases will determine whether those defending Proposition 8 will have standing to appeal their trial court loss.

When Liu withdrew his appeals court nomination in May, after being the subject of two years of partisan bickering, PFAW’s Marge Baker said in a statement that he “would have made a superb jurist” but “unfortunately, Mitch McConnell and the Senate GOP decided to use Goodwin Liu to make a political point – they smeared the reputation of this respected legal mind while ignoring many of their own vows to never filibuster a judicial nominee.”

California is lucky to have Liu on its Supreme Court. But it’s a shame that the Senate GOP put him through two years of partisan smears before he found a place on the bench.
 

PFAW

Justice Ginsburg Mourns Breakdown of Judicial Nominations Process

At a speech yesterday at Southern Methodist University, Justice Ruth Bader Ginsburg touched upon the depressing state of our nation's judicial nominations process. As reported by the Associated Press:

U.S. Supreme Court Justice Ruth Bader Ginsburg said Monday that the confirmation process has become much more partisan and that she probably never would have made it to the high court under the current climate.

"I wish we could wave a magic wand and go back to the days when the process was bipartisan," Ginsburg told the crowd of about 2,000 as she spoke as part of a lecture series for Southern Methodist University's Dedman School of Law.

While most of us cannot wave such a magic wand, Senate Minority Leader Mitch McConnell can. With one word he could stop many of the GOP obstruction tactics against President Obama's judicial nominees. It was just such obstruction that prevented the Senate from voting to confirm twenty pending nominees before it left town several weeks ago, 17 of whom got through committee with no recorded opposition.

As ThinkProgress reported, Justice Ginsburg also noted the hostility felt by some senators toward the ACLU: "Today, my ACLU connection would probably disqualify me."

Unfortunately, she may be right. Late last year, Senator Jeff Sessions – then the Ranking Republican on the Senate Judiciary Committee – railed against judicial nominees who had worked with or been a member of the ACLU, specifically targeting William Martinez, Edward Chen, Goodwin Liu, Jack McConnell, Amy Totenberg, Robert Wilkins, and Michael Simon. He concluded his tirade with the following warning to President Obama:

I do believe the administration needs to understand that this is going to be a more contentious matter if we keep seeing the ACLU chromosome as part of this process.

Republican hostility to the ACLU – and to the constitutional rights it regularly protects – is extremely disturbing. At the same time, the blocking of even unopposed nominees suggests that the GOP's main problems with President Obama's nominees is that they are President Obama's nominees.

PFAW

Goodwin Liu Nominated to California Supreme Court

Today, Governor Jerry Brown appointed Goodwin Liu to serve on the California Supreme Court. Liu, a professor at UC Berkeley with extensive experience in public service, is an exceptionally well-qualified legal scholar. 

“He is a nationally recognized expert on constitutional law and has experience in private practice, government service and in the academic community,” Brown said in his announcement. “I know that he will be an outstanding addition to our state supreme court.”

 Liu’s appointment to the California high court comes after President Obama had unsuccessfully nominated him to the U.S. Ninth Circuit Court of Appeals. Although his sterling credentials were not in doubt and he had strong bipartisan support outside the Senate, unprecedented obstruction by Senate Republicans eventually prevented Liu’s confirmation. After years of claiming that judicial filibusters were unconstitutional when George W. Bush was president, Republican Senators did an about-face that would have done Mitt Romney proud once Obama took office, and they shamefully prevented the Senate from voting on Liu’s nomination.

Governor Brown’s decision is a testament to Professor Liu’s outstanding judicial temperament and readiness to serve. Liu says he is “deeply honored” by the nomination – and this honor is well-earned. Californians will be fortunate to have someone of Goodwin Liu’s caliber on their state supreme court.

PFAW

Mat Staver Flaunts His Ignorance About Goodwin Liu

(cross posted to Right Wing Watch)

Mat Staver of the ironically named Liberty Counsel has a new video up where he takes credit for the shameful filibuster of Goodwin Liu. That clears up so much.

Was it Mat Staver who "exposed" the "extremism" of this extremely qualified nominee? Was it Mat Staver who convinced every Republican senator but one to ignore Liu's testimony before the Senate Judiciary Committee, his detailed written submissions, and his many articles, all of which disproved the lies being told about him? Was it Mat Staver whose keen legal arguments completely discredited conservative legal figures like Ken Starr, Clint Bolick, Richard Painter, and John Yoo, all of whom were part of the vast network of support Liu received from the nation's legal community across the ideological spectrum?

Yeah, right.

No, it was naked partisan politics at its worst and not Mat Staver that sank Goodwin Liu's nomination.

But the video does raise an interesting question: If Staver knows so much about Goodwin Liu, why does he repeatedly call him "Godwin"? Don't you think he would know the man's name after all of his exhaustive research and outreach to senators?

PFAW

With Liu Gone, GOP Still Twisting his Record

On Wednesday night, Berkeley law professor Goodwin Liu wrote to President Obama asking that the his nomination to sit on the Ninth Circuit Court of Appeals be withdrawn. Liu’s exit was the culmination of two years of smears, scapegoating and filibustering, in which the nominee never even got an up or down vote from the Senate.

The main gist of Republican opposition to Liu was the claim that he would be an “activist judge” in favor of making up constitutional rights willy-nilly (a claim that Republicans in the Senate have lobbed at any number of highly qualified judicial nominees, including current Supreme Court justice Elena Kagan, but interestingly not at Republican nominees who have shown strong streaks of creative legal interpretation).

In an op-ed earlier this week, the New York Times singled out Sen. John Cornyn for his false claim that Liu holds the “ridiculous view that our Constitution somehow guarantees a European-style welfare state.” Yesterday, in a letter to the editor, Cornyn fought back, providing this quote from a 2006 law review article by Liu to back up his claim:

On my account of the Constitution’s citizenship guarantee, federal responsibility logically extends to areas beyond education. ... Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports such as expanded health insurance, child care, transportation subsidies, job training and a robust earned income tax credit.

What is interesting about this quote is that it doesn’t say what Cornyn says it says. At all. Nowhere in the quote -- which Cornyn points to as decisive evidence that Liu wants the courts to turn us into Denmark -- does Liu say that the courts should enforce a social safety net. In fact, Liu is careful to specify that he is discussing the duty of Congress to create a “legislative agenda” that fulfills the highest ideals of the Constitution, rather than a judicial responsibility to enforce that agenda.

Elsewhere in the article [pdf], Liu makes it perfectly clear that he sees it as the duty of Congress, not the courts, to guarantee basic living standards for citizens. He even explicitly states that he intentionally doesn’t use the term “rights” because that would imply “judicial enforceability” of the values that he’s discussing:

In this Article, I do not address whether the Supreme Court or any court should hold that the Fourteenth Amendment guarantees an adequate education. Although that question remains open in the case law, my thesis is chiefly directed at Congress, reflecting the historic character of the social citizenship tradition as “a majoritarian tradition, addressing its arguments to lawmakers and citizens, not to courts.” Whatever the scope of judicial enforcement, the Constitution—in particular, the Fourteenth Amendment—speaks directly to Congress and independently binds Congress to its commands. Thus the approach to constitutional meaning I take here is that of a “conscientious legislator” who seeks in good faith to effectuate the core values of the Fourteenth Amendment, including the guarantee of national citizenship.

From this perspective, the language of rights, with its deep undertone of judicial enforceability, seems inapt to probe the full scope of a legislator’s constitutional obligations. As Professor Sager has observed, “[T]he notion that to be legally obligated means to be vulnerable to external enforcement can have only a superficial appeal.” It is more illuminating to ask what positive duties, apart from corresponding rights, the Fourteenth Amendment entails for legislators charged with enforcing its substantive guarantees. Framed this way, the inquiry proceeds from the standpoint that Congress, unlike a court, is neither tasked with doing legal justice in individual cases nor constrained by institutional concerns about political accountability. Instead, “Congress can draw on its distinctive capacity democratically to elicit and articulate the nation’s evolving constitutional aspirations when it enforces the Fourteenth Amendment.” By mediating conflict and marshaling consensus on national priorities, including the imperatives of distributive justice, Congress can give effect to the Constitution in ways the judicial process cannot.

Thus the legislated Constitution, in contrast to the adjudicated Constitution, is not “narrowly legal” but rather dynamic, aspirational, and infused with “national values and commitments.” …

(emphasis is mine)

Cornyn and his pals in the Senate know what was in the article they attacked. Liu even explained it to them in detail in response to written questions from the Senate Judiciary Committee [pdf]. But it was easier to willfully misinterpret Liu's writing and paint him as irresponsible than to engage in a substantive debate on his qualifications.

 

PFAW

Murkowski Shows Her Colleagues How to Keep One's Word with Liu Vote

As a bit of follow up to Michael's post about the Goodwin Liu vote, it is worth noting that Sen. Lisa Murkowski was the ONLY Republican senator to break with her party and do the right thing, voting to move the nomination forward to a full floor vote.

In 2005, she said, “Let me make it clear that I support an up-or-down vote on all nominations brought to the Senate floor, regardless of the president nominating them or which party controls the Senate.”

Murkowski said in a statement after today's vote, "I stated during the Bush Administration that judicial nominations deserved an up or down vote, except in ‘extraordinary circumstances’ and my position has not changed simply because there is a different president making the nominations."

Sen. Murkowski deserves to be thanked for her consistency, and for sticking to a commitment that many in her party also made but abandoned.

PFAW

Shameful!

Imagine senators of one party filibustering a judicial nominee who has been hailed as one of his generation’s great legal minds by legal experts of both parties and across the ideological spectrum on the grounds that he is *too* qualified.

Well that's exactly what happened today.

In what could be the most egregious example of the GOP’s partisan obstruction of judicial nominations to date, Senate Republicans today blocked Goodwin Liu from receiving an up or down vote. Liu, a law professor and dean at U.C. Berkeley who as a nominee has the American Bar Association’s highest rating, was nominated for a seat on the 9th Circuit Court of Appeals by President Obama over a year ago, and has since been approved by the Judiciary Committee three times.

His credentials and grasp of the law and Constitution are impeccable. Liu’s only mistake: being too qualified.

At age 40, his confirmation to the 9th Circuit could put him in position to be the first Asian American Supreme Court nominee. Because of his intellectual heft, his commitment to Americans’ constitutional rights and his commonsense understanding of how the law impacts people’s lives, the prospect of Liu’s future elevation, and even his influence on a Circuit Court of Appeals, terrifies corporate special interests and right-wing ideologues ... the same people calling the shots with Republican senators.

Shame on them. The concocted justifications Republican senators used in their opposition to Liu were based on unbelievable distortions of his record by Radical Right activist groups, as well as Liu’s testimony in opposition to Supreme Court Justice Samuel Alito’s confirmation. They rested their opposition on lies because they know that a Liu filibuster makes a mockery of the supposed agreement between parties to employ a filibuster only in “extraordinary circumstances.” Everything about Goodwin Liu’s record and the breadth of his support indicates a legal expert squarely in the mainstream -- the only thing “extraordinary” about him is how good he is, and how deserving he was of confirmation.

Every GOP senator except Alaska’s Lisa Murkowski participated in the filibuster. If one or both of your U.S. senators are Republicans, CALL them right now and let them hear it. Tell them, “shame on you for filibustering Goodwin Liu,” and let them know that you will be working hard to hold them accountable in their state.

Make sure you SIGN our “Stop the Obstruction” petition to the Senate and let senators of both parties know that the continued obstruction of the president’s nominees is hurting our country and will not be tolerated.

We need Republicans to feel the pressure about their judicial obstructions just like they are feeling it about their attacks on Medicare. And Democratic leaders in the Senate need to know that they must be using every tool in their arsenal to combat this obstruction.

PFAW

It's Time to Confirm Goodwin Liu

The Senate is currently debating the nomination of Goodwin Liu to the Ninth Circuit Court of Appeals. Liu is a phenomenally well qualified legal scholar who has support across the political spectrum, as well as among a majority of U.S. Senators. However, because Senate Republican leaders are putting politics over all else, they are set on stymieing the majority and filibustering the nomination. A cloture vote to end this stalling tactic may occur as soon as tomorrow morning.

People For the American Way supports the nomination. We sent a letter this morning that says much of what we have been saying in person on the Hill for over a year. Among other things, the letter states:

Perhaps the most powerful testament to Professor Liu's superb qualifications is the extensive support his nomination has garnered from across the ideological spectrum. It is not only progressive and moderate legal thinkers who admire his work: He has received endorsements from conservatives such as Ken Starr, Solicitor General under President Ronald Reagan; Richard Painter, the chief ethics counsel for President George W. Bush; and Clint Bolick, Director of the conservative Goldwater Institute.

When a judicial nominee attracts such strong support independent of political ideology, you can be confident that he is exactly the kind of mainstream, talented, and fair jurist we need on the federal bench.

Although Liu has the support of a majority of senators, his opponents are working to block his nomination from receiving an up or down vote. Their claim is that Liu's nomination constitutes one of those rare "extraordinary circumstances" warranting a filibuster, under the benchmark developed by the Gang of 14 during the George W. Bush Administration.

By no measure can this nomination be considered to even approach "extraordinary circumstances." Even a cursory look at President Bush's nominees who were approved using that test – those whose nominations were not considered to constitute "extraordinary circumstances" – makes clear that Liu's nomination must be permitted to go forward.

  • Pricilla Owen's dissenting positions on the Texas Supreme Court were so extreme that even her fellow conservatives on the Supreme Court in different cases described them with phrases like "an unconscionable act of judicial activism," "disregard of the procedural elements the Legislature established," "def[ying] the Legislature's clear and express limits on our jurisdiction," and "inflammatory rhetoric." Her nomination was not considered extraordinary, and the Senate afforded her an up-or-down vote for a seat on the Fifth Circuit, where she is now serving.
  • Thomas Griffith pushed to severely curtail laws ending discrimination against women and girls' participation in school athletic programs, declaring "illegal" a test upheld by all eight of the nation's Circuit Courts of Appeals that had considered the issue. He was also suspended from the DC Bar for failure to pay mandatory Bar dues yet continued to practice law in the District during that time. Published reports and an examination of Utah law indicated that he had been engaged in the unauthorized practice of law in Utah for the four years prior to his nomination. Nevertheless, the Senate did not consider Griffith's nomination extraordinary, and he received an up-or-down vote confirming him to a seat on the DC Circuit Court of Appeals.
  • Janice Rogers Brown criticized opposition to the Lochner decision, which began the period when the Supreme Court issued its most pro-corporate rulings—rulings that struck down laws requiring minimum wages, regulating working hours and conditions, and banning improper business practices. In addition, despite several Supreme Court rulings to the contrary, she explicitly suggested that Title VII of the 1964 Civil Rights Act is unconstitutional. Despite this record, her nomination was not considered an "extraordinary circumstance," and the Senate was allowed to cast an up-or-down vote, confirming her to the DC Circuit Court of Appeals.
  • William Pryor called Roe v. Wade "the worst abomination of constitutional law in our history" and urged Congress to consider repealing or amending Section 5 of the Voting Rights Act. Despite the significant opposition that these and other extreme positions garnered, his nomination was not filibustered, and he was confirmed to the Eleventh Circuit Court of Appeals.

Each of these nominees attracted substantial controversy and was opposed by numerous civil rights and civil liberties groups, but not one was found to constitute "extraordinary circumstances."

The claim that Goodwin Liu is out of the mainstream as compared to any of these nominees simply does not bear scrutiny. In fact, a fair reading of his work makes clear that Liu is well within the judicial mainstream.

By any standard articulated by either party, Goodwin Liu's nomination deserves a vote on the Senate floor, and he should be confirmed to the Ninth Circuit Court of Appeals.

Tomorrow, we will learn which Republican senators are willing to toss logic, consistency, principles, and the good of the nation's court system out the window in order to score political points against a Democratic president.

PFAW

Still More Bipartisan Support for Goodwin Liu

Richard Painter, once the chief White House ethics lawyer for President George W. Bush, has a comprehensive, well-researched piece in the Huffington Post whose title says it all: "Qualified, Measured, and Mainstream: Why the Senate Should Confirm Goodwin Liu." Now a professor at the University of Minnesota, this conservative lawyer is one of the many legal scholars from across the political spectrum to support Liu's nomination.

Despite this broad support, perhaps no jurist nominated to the federal bench by President Obama has been maligned, mischaracterized, and mistreated by far right extremists more than Goodwin Liu. Point by point, Painter demolishes the myths about Liu. As Painter explains in detail, the caricature the far right has created bears no relation to reality. As he writes:

Liu's opponents have sought to demonize him as a "radical," "extremist," and worse. National Review Online's Ed Whelan has led the charge with a "one-stop repository" of attacks on Liu. However, for anyone who has actually read Liu's writings or watched his testimony, it's clear that the attacks--filled with polemic, caricature, and hyperbole--reveal very little about this exceptionally qualified, measured, and mainstream nominee. ...

This post brings together a variety of material about Liu:

  • First, I review Liu's background, qualifications, and key endorsements.
  • Second, I highlight two letters from respected authorities that shed important light on Liu's scholarly record.
  • Third, I provide several responses to various attacks on Liu.
  • Fourth, I address Liu's opposition to the Supreme Court confirmations of Roberts and Alito, two Justices whom I vigorously supported as a Bush administration lawyer and whom I believe were outstanding additions to the Court.

These materials summarize why Liu is an excellent choice for the federal bench. But even if you read this entire post, nothing substitutes for reading Liu's writings or watching his testimony for yourself. That is how I reached the conclusion that Liu deserves an up-or-down vote in the Senate and ought to be confirmed.

Liu's nomination has been stalled by Republican senators for more than a year. Today, he appears yet again before the Senate Judiciary Committee. When the committee once again approves his nomination and sends it to the Senate floor, leadership should schedule a vote, defy any GOP threats to filibuster, and get this most talented of judicial nominees confirmed at last.

PFAW

White House: Judicial Nominations are a Priority for Lame Duck

White House Press Secretary Robert Gibbs told reporters yesterday that pushing through stalled judicial nominations would be one of the president’s priorities in the last days of the lame duck session of Congress.

People For released a memo last week detailing why it’s important for the Senate to confirm all 38 stalled nominees immediately:

As the end of the 111th Congress approaches, 38 judicial nominees approved by the Senate Judiciary Committee are waiting for a vote on the Senate floor. Many of the nominees have been waiting for months, while a few have been waiting for almost a year.

Of these nominees:

  • 21 (55%) have been nominated to fill emergency slots.
  • 29(76%) are women or people of color.
  • 29 (76%) came out of committee without opposition and an additional 3 came out of committee with significant bipartisan support.

There’s no question that a majority of senators will vote to confirm every one of these nominees, and it’s unlikely that any of them would fail to garner the 60 votes necessary to overcome procedural hurdles that the GOP has deployed on virtually every function the Senate has performed since President Obama took office. (This is doubly true considering that many members of the GOP have publicly asserted that filibusters of judicial nominees aren’t just wrong, but actually unconstitutional.)

Now, Senate Minority Leader Mitch McConnell seems to be offering Democrats a devil’s bargain: confirm a number of the nominees that don’t have any opposition at all, but send the rest back to the White House at the end of the Congress. The group being sent back to the White House will almost certainly include four of the eminently qualified – and mainstream -- nominees who have had the misfortune of being tagged as “controversial” by Republicans:

  • Rhode Island nominee John McConnell, who has been opposed by the US Chamber of Commerce for his willingness to represent victims of lead paint poisoning.
  • Former Wisconsin Supreme Court Justice Louis Butler, whose work as a judge irked business interests so much, they spent $1 million to prevent his reelection.
  • U.S. Magistrate Edward Chen, who has been attacked for his work fighting discrimination against Asian Americans for the American Civil Liberties Union.
  • And then, of course, Ninth Circuit Appeals Court nominee Goodwin Liu. As the New York Times editorial page has pointed out, the GOP’s resistance to Liu centers mainly around the fear that he’s so qualified, he might end up on the Supreme Court.

Senator Reid and his colleagues should call Senator McConnell’s bluff and start holding cloture votes on these nominees. The process will take time, but adding time to the calendar is entirely within the Democratic leadership’s purview. By confirming McConnell, Butler, Chen, and Liu, Senators can make clear that they will fight the unprecedented and enormously damaging obstruction of highly qualified judicial nominees. Walking away from these nominees delivers the confirmation process to the GOP: they’ll effectively block confirmable jurists without even having to go on record with their obstruction.

President Bush worked hard to pack the courts with far-right, Federalist Society judges. Confirming Obama’s picks will not only fill vacancies causing judicial emergencies and add much-needed diversity to the federal bench, it will prevent the federal bench from continuing to be dominated by Bush’s far-right appointments.

 

PFAW

Former Bush Lawyer: Stop Partisan Bickering and Confirm Liu

The Blog of the Legal Times is reporting that Senate Majority Leader Harry Reid is planning to call Senate Republicans on their obstruction of judicial nominees and break the gridlock that has kept four of these nominees pending, in some cases for over a year. Reid will attempt to stop the Republican filibuster of Ninth Circuit nominees Goodwin Liu and Edward Chen, Rhode Island District Court nominee John McConnell, and Wisconsin District nominee Louis Butler. 

This is a critical moment for these nominees, who despite support from their home-state senators and endorsements across the ideological spectrum, have for various reasons been branded as “too extreme” by obstructionist Republicans in the Senate. McConnell has been up against an expensive lobbying campaign from the Chamber of Commerce, which objects to his work as a public interest lawyer representing victims of lead paint poisoning. Butler has been up against business interests who don’t think he was friendly enough to them when he was on the Wisconsin Supreme Court. Chen was accused by Jeff Sessions, the top Republican on the Senate Judiciary Committee of having an apparently disqualifying “ACLU chromosome.”

Liu’s nomination has been the subject of the most partisan squabbling. Liu’s main obstacle, it seems, has been his own brilliance: some on the Right worry that if he makes it on to the bench, he could eventually become a Supreme Court nominee. But Liu’s nomination is backed by legal luminaries from across the ideological spectrum, including former Bush White House lawyer Richard Painter, who today wrote another plea for the Senate GOP to break the judicial gridlock and at least take a vote on Liu’s nomination:

In any event, nominees who should not be controversial, including Goodwin Liu (I have made previous posts here on his nomination), are described as radical activists, the same tactic that advocacy groups deployed to mischaracterize many of President Bush’s nominees.

Public opinion of Members of Congress (both parties) these days is lower, far lower, than it was in the days when Senator Henry Cabot Lodge used just the right term to describe what he saw going on when Senators filibustered legislation. Those of us who care about the future of the judiciary should make it clear that the delay must stop.

This does not mean the Senators should vote "yes". They can vote "no". But they should vote.

Specific nominations aside, the federal judicial system in general has taken a drubbing under the Senate GOP’s refusal to confirm nominees. A new report from the Alliance for Justice has found that the number of vacancies in the federal judiciary has nearly doubled since President Obama took office, and that the number of open seats designated as “judicial emergencies” has risen from 20 to 50, affecting 30 states.

Confirmation votes will become much more difficult next year, with Democrats hanging on to a much slimmer majority in the Senate. Now’s the time to push through the nominees whom the GOP has been the most eager to obstruct.
 

PFAW

The GOP Displays Effective Use of Taxpayer Dollars

The Senate Judiciary Committee this morning voted to approve seven federal judicial nominees. Four of these nominees are Judiciary Committee pros by now—they’ve already been approved by the committee, but were blocked by Senate Republicans, and had to start the nomination process all over again. Two are going through the process for the third time.

So what high ground is the GOP standing on in their months long blocking of these four nominees and insistence on holding the same debate multiple times?

Well, there are the objections to Rhode Island nominee John McConnell, who had the gall to represent victims of lead paint poisoning, and be proud of it.

Not to mention the record of former Wisconsin Supreme Court Justice Louis Butler, whose work as a judge irked business interests so much, they spent $1 million to stop his reelection.

Then there’s the outrage against U.S. Magistrate Edward Chen for his work fighting discrimination against Asian Americans for the American Civil Liberties Union.

And then, of course, there’s the all-out battle against Ninth Circuit Appeals Court nominee Goodwin Liu. As the New York Times editorial page points out today, the GOP’s resistance to Liu centers mainly around the fear that he’s so qualified, he might end up on the Supreme Court.

And these are just the nominees to which the GOP has been able to articulate some sort of objection. There are now 23 nominees waiting for votes on the Senate floor--17 of them made it through the Judiciary Committee without the objection of a single Republican.

Witness the trademark efficiency of the Party of No.
 

PFAW

Trading Judges

As the Senate prepares to vote this week on the Supreme Court confirmation of Elena Kagan, there is also reportedly a deal in the works to finally confirm dozens of the executive branch and judicial nominees who have been waiting—many of them for months—for votes on the Senate floor.

CQ reports:

After seeing only two nominees confirmed during July, Majority Leader Harry Reid, D-Nev., and Minority Leader Mitch McConnell, R-Ky., are discussing terms for advancing at least some of the 84 nominations awaiting floor votes, aides said Monday. “We have a number of nominations that we’re looking at,” said Reid.

But some of the more controversial nominees are unlikely to be confirmed before the Senate returns in mid-September, if then. That may tempt Obama to use recess appointments to fill those vacancies at least temporarily — unless the White House agrees to pass up the opportunity to make recess appointments in exchange for Senate action on some nominees this week.

It’s about time that the Senate gets around to clearing the nominations backlog. But voting on nominees that were reported months ago without any opposition is no great concession by the Republican minority. It’s time to end the charade and the gamesmanship.

Take for example North Carolina judge Albert Wynn, whose nomination to fill a long-vacant seat on the Fourt Circuit Court of Appeals was approved by the Judiciary Committee in an 18-1 vote six months ago, and has been held up by GOP leadership ever since. David Savage at the Los Angeles Times describes the holdup of Wynn’s nomination as part of a political battle similar to “an old family feud”:

The GOP leader had no objection to Wynn. Instead, he said, he was getting back at Democrats who had blocked President George W. Bush's nominees to the same court. "My perspective on the 4th Circuit covers a little longer period of time," McConnell said.

The Senate's dispute over judicial nominees resembles a family feud that stretches over several generations. Judges are being opposed not because of their records, but because of what happened several years earlier to other nominees. Use of the filibuster rule, which the GOP had insisted was unconstitutional several years ago, has become a routine stalling tactic.

If confirmed, Wynn would fill a North Carolina seat on the 4th Circuit that has been vacant since 1994.

Let’s have a vote on James Wynn. Or let’s have a vote on Jane Stranch of Tennessee, nominated to fill a seat on the Sixth Circuit, who has the support of both of her home state Republican Senators. And let’s have a vote on Goodwin Liu, nominated for a seat on the Ninth Circuit, who has endorsements from across the ideological spectrum, including Clint Bolick and Ken Starr.


The debate over judicial nominations has become not about qualifications or the law, or about the urgent needs of the justice system, but about political game-playing. It’s great that the GOP has finally agreed to confirm some nominees who they never objected to in the first place. Maybe now they can move on to having a substantive debate on those, like Wynn, Stranch, and Liu, against whom they continue to use every passive-aggressive rule of Senate procedure.
 

PFAW

GOP Blocks 20 Judicial Nominees, Rebuffs Goodwin Liu Again

Nine Democratic senators went to the Senate floor today to call for up-or-down votes on the confirmation of 20 federal judicial nominees, many of whom have been waiting months to be confirmed and several of whom passed out of the Judiciary Committee with little or no opposition from members of either party. The Senators who spoke on the floor today included Mark Udall (CO), Michael Bennet (CO), Amy Klobuchar (MN), Herb Kohl (WI), Sheldon Whitehouse (RI), Jack Reed (RI), Ben Cardin (MD), Tom Carper (DE), and Ted Kaufman (DE).

The explanation from Senator Sen. Jeff Sessions, one of the architects of the obstruction? "Things do not always go as smoothly as you would like."

Among the nominees Democratic senators sought votes on were several whose nomination sagas we've been following. There were Albert Diaz and James Wynn of North Carolina who would be be, respectively, the first Latino and fourth African American appointed to the Fourth Circuit Court of Appeals (and who garnered one no vote between the two of them in committee). There was John McConnell of Rhode Island, who has come under attack from the powerful lobbyists at the Chamber of Commerce because of his record of defending consumers in suits against large manufacturers. There was William Joseph Martinez, the Colorado judge who has come under attack for having sat on an advisory panel for the ACLU.

And then there was Goodwin Liu. Sen. Ben Cardin told a Netroots Nation panel last week that Liu's hearing with the Judiciary Committee was "one of the most impressive confirmation hearings we've ever had." Richard Painter, who served as a lawyer in the Bush White House, called him "a fine choice for the federal bench." Yet, inexplicably, Liu, a law professor at Berkeley who is respected by legal scholars across the political spectrum, has become a flash point for Republican obstruction.

It's time for the Senate GOP to stop stalling votes on these critical nominations and come clean about their true priorities for the courts.

Many thanks to the Senators who took to the floor today to shine a spotlight on this unprecedented and senseless obstruction.

 

PFAW

Party Line Vote on Goodwin Liu in Committee

In a vote that surprised absolutely no one, Republicans on the Senate Judiciary Committee voted unanimously against the confirmation of Goodwin Liu, President Obama’s nominee for a seat on the Ninth Circuit Court of appeals. Nevertheless, he passed out of committee by a vote of 12 to 7.

Since even Liu’s critics concede that he’s brilliant, the GOP decided to attack him as “outside the mainstream” and for lacking judicial experience.

By now it’s well established that the Senate GOP will attack anyone as outside the mainstream, so that attack merits little more than a hearty yawn.

But lacking judicial experience? That’s relatively new for Senate Republicans. They sure didn’t mention it when they were voting for 24 courts of appeals judges nominated by President George W. Bush without any judicial experience, or when they were praising former Chief Justice of the Supreme Court William Rehnquist who went to the high court without ever having been a judge. And maybe they didn’t notice that the American Bar Association declared Liu “well qualified,” its highest possible endorsement.

Then again, Senate Republicans have never been shy about applying a double standard when it comes to judicial nominations.
 

PFAW

Judiciary Committee Schedules Vote on Goodwin Liu

The Senate Judiciary Committee has scheduled a vote for this Thursday on the nomination of Goodwin Liu to the 9th Circuit Court of Appeals.

Richard Painter—who, as George W. Bush’s chief ethics lawyer helped to shepherd through the nominations of Justices John Roberts and Samuel Alito— brought an interesting perspective to the Liu nomination in this morning’s Los Angeles Times:

A noisy argument has persisted for weeks in the Senate, on blog sites and in newspaper columns over President Obama's nomination of Liu to the U.S. 9th Circuit Court of Appeals. This political spat over a single appellate judge makes no sense if one looks at Liu's academic writings and speeches, which reflect a moderate outlook. Indeed, much of this may have nothing to do with Liu but rather with politicians and interest groups jostling for position in the impending battle over the president's next nominee to the Supreme Court.

Painter is right that Liu’s nomination has served as a flashpoint for partisan squabbles and a testing ground for new conservative talking points. We hope that the Judiciary Committee will be able look past the political expedience of bickering over Liu, and recognize him as the qualified, fair nominee he is.

PFAW

Senator Sessions Plays the “Judicial Activism” Card

At a Senate Judiciary Committee hearing today, Senator Jeff Sessions said that that Goodwin Liu’s writings represent “liberal judicial activism.” And he doesn’t like it!

But what Sessions apparently does like is conservative judicial activism. Overturn more than a century of settled campaign finance law? Limit women’s ability to recover for being discriminated against on their jobs? Hand billions of dollars to Exxon? Rewrite the Voting Rights Act? That’s a-ok! “Liberal judicial activism,” (by which I assume he means opposing those decisions)? Bad.

Senator Sessions’s ability to keep a straight face while delivering such patently farcical attack is impressive. His stale talking points aren’t.
 

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Meet the Right’s Newest Judicial Codeword

Maybe the Right Wing is finally realizing that after Citizens United, “judicial activism” just doesn’t cut it for slamming judicial nominees who aren’t willing to overturn a century of settled campaign finance law. So they’re trotting out a brand new talking point to fill the void: “outcome based” judging.

CQ-Roll Call highlighted the up-and-coming new meme:

As part of that effort, Republicans beginning this week will look to use some of Obama’s previous lower court picks — particularly the nomination of Goodwin Liu to the U.S. Court of Appeals for the 9th Circuit — as adhering to a liberal, “outcomes-based” philosophy rather than a constitutionalist approach.

What’s it mean? Allow us to translate: “Liberal activist!! Legislate from the bench!! Empathy! Wise Latina!!!! OMG OMG OMG!!!!”

Yes, “outcome based” is just the latest in a long line of virtually meaningless epithets aimed at any judicial nominee who disagrees with the gospel according to Robert Bork.

Is there a debate to be had between different philosophies towards applying the Constitution? Sure. Justice Scalia and Justice Breyer have it all the time. But this isn’t it. In the upcoming confirmation process for Justice Stevens’s successor, the American people deserve a conversation about the Court and the role it plays in the lives of ordinary people. Unfortunately, it seems like the GOP is planning the same warmed-over sound bytes we’ve been getting for years.
 

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